JANUARY 30, 2016
THOSE OF US who have admired Justice Ruth Bader Ginsburg for years and who have worked with her have always known her as a fierce and brilliant thinker. Fierce and brilliant thinkers normally toil in relative obscurity, at least when compared with the likes of Jay-Z and the Kardashians. This is why the Notorious RBG phenomenon took us as a surprise, though definitely a heartening and happy one.
Notorious RBG: The Life and Times of Ruth Bader Ginsburg is a loving, slightly ironic biographical gift-book that is a spin-off from a Tumblr fan site that launched Justice Ginsburg into the pop culture stratosphere. The book was written by the Tumblr creator, recent NYU Law grad Shana Knizhnik, and TV reporter Irin Carmon, who interviewed the Justice for MSNBC.
Picking it up, I wondered whether the two self-proclaimed #millennial authors would be more enamored with the “Notorious RBG” phenomenon that they created than with the actual Justice and her work. Would they reduce their story to a charming mash-up between an American story of a Jewish girl from Brooklyn who works hard and follows her dream to the US Supreme Court and the in-your-face energy of the rap music world? Or would they take their task more seriously, and attempt a deeper level of education?
The Supreme Court is an institution that takes its own solemnity very seriously. The internal deliberations of the justices are completely secret. Cameras are not allowed in the courtroom, lest legal advocacy veer into media grandstanding. Justices generally decline requests to participate in the news talk show circuit to pump up popular support for their rulings.
In fact, the range of action that a single justice can take if she sees the majority of her colleagues creating legal doctrine that steers the country in the wrong direction is quite limited.
She can write a dissent. She can explain what is wrong and why and what the likely consequences might be. She can point to areas of faulty or slippery reasoning. She can urge legislation to amend statutes that have been misconstrued. She can urge a different understanding of the constitution or even assert the need for an amendment if history proves necessary. And if the bare words on a written page seem too small for the deed, what else is there to do? Not much beyond taking to the bench, reading her views out loud, and donning a special garment to show she really means it.
These efforts of dissent are of little effect, however, unless the rest of us sit up, take notice, and do something.
No justice has a marketing team to amplify her voice. Notorious RBG steps into this void. It serves as a happy, amusing, and diverting megaphone, developing what the Tumblr started. It lets us know what Justice Ginsburg thinks is going wrong and why, and spreads her message, transforming Justice Ginsburg into a cultural icon, as fierce and unflappable as any legal thinker could be.
To those of us who knew the Justice before her face could be found on tattoos and T-shirts, and before babies thought of impersonating her for Halloween, her quiet brilliance, forceful conviction, and wit so dry it is often missed may have seemed unlikely to propel her to this status. Yet Notorious RBG teaches us that it is precisely these characteristics that make her an ideal personification of dissent. When the Supreme Court makes razor-thin majority rulings that are contrary to core principles of equality and that turn a blind eye to history, it is fitting that we should have images (the Justice’s stylized face and big glasses) and slogans (you can’t spell truth without Ruth) to help spread the word that something must be done.
The book is clearly a valentine. We see the Justice as part Thurgood Marshall, part Jackie O., and part your quiet but firm mother, grandmother, or sister, who will not be underestimated and who won’t let you get away with anything, either.
The Notorious RBG concept takes on a superhero quality, but instead of the cape and tights, our hero dons a black robe, a jaunty gold crown, and a “dissent jabot” — the decorative collar she wears for appearances on the bench when she is reading from her dissent aloud for special emphasis and as a call to action against grave injustice.
For those looking for a more up-close-and-personal insight into the Justice, the authors provide a glimpse of that as well. We see wonderful photographs of the Justice as a child and as a young lawyer, toiling away for gender equality. Much of the biographical information has appeared in other settings but is presented in a breezy and appealing style, rather than a scholarly slog.
Some of the tales remind us that it was not so long ago that the barriers women faced in the workplace often came in the form of fixed rules of exclusion. Her law school dean at Harvard polled the few women in the class to find out how they could justify taking a place from a man. When she sought to spend her last year of law school in New York to be with her husband Marty, who was recovering from cancer and had secured a position working as a tax attorney at a New York law firm, Harvard refused to grant her a degree, creating for Columbia Law School one very loyal alumna. But even graduation at the top of her class from Columbia could not in those days lead to a law firm position for the women graduates, RBG included.
Some of the stories remind us of the importance of good health and exercise. We learn of Justice Ginsburg’s exercise routine, the trainer she shares with other judges in the Capitol, and her ability to do 20 push-ups — in plank position, no knees! When reporter Jeffrey Toobin published an article referring to the Justice as “frail,” Marty confronted him at a cocktail party, asking how many push-ups he could do in comparison. Toobin’s endearing atonement appears in the form of a jacket blurb, describing the book as the “biography of a bad-ass”!
We learn of the love between the Justice and Marty, and we can read in his handwriting the winking sweet words he wrote to her shortly before he passed away. “You are the only person I have loved in my life, setting aside, a bit, parents and kids and their kids …” and if you want to read the rest, you’ll have to pick up a copy of the book. Suggesting that their relationship is a model that others might consider, the book contains a wonderful American Gothic–style photographic portrait of Marty Ginsburg, bare-legged, with an apron and dish cloth, side-by-side with his favorite Justice, hair pulled back, in a formal black judicial robe and bright white collar that perfectly offsets Marty’s dish cloth.
But most important, we learn of the approach to the law that she learned from the civil rights movement, and that she practiced in working at the ACLU to end gender discrimination. These experiences have guided her career. Her strategy was to effect lasting change by increments and through patient staging, to put the legal building blocks in place to support social change, bit by bit, so the result would be both lasting and acceptable to the public as fair and good.
First, start with challenges to governmental regulations or statutes that are obviously based on nothing more than stereotypes, and that hurt men as well as women.
One of her favorite cases at the ACLU was Weinberger v. Wiesenfeld, in which a stay-at-home father whose wife had passed away challenged the Social Security rule that gave special benefits to mothers but not fathers. The Court agreed with RBG, who later described it as
part of an evolution toward a policy of neutrality — a policy that will accommodate traditional patterns, but at the same time, one that requires removal of artificial constraints so that men and women willing to explore their full potential as humans may create new traditions by their actions.
RBG’s approach (notorious or not) was about more than clever strategic thinking — to focus on harms to men, for example — but was part of a deep conviction that rigid gender stereotypes harm men as well as women, and that we all benefit from having an equal chance.
Another aspect of this work was to focus on reproductive freedom. In RBG’s hopes, the Court would come to recognize pregnancy discrimination as a type of gender discrimination since only women can become pregnant. And the cases would develop first from challenges to governmental or corporate rules that required women to stop working upon becoming pregnant. Such cases provided a sympathetic starting point and base from which to build recognition of the way reproductive choice was critically tied to gender equality. In the Justice’s ideal, the state reforms on abortion regulation would have been allowed to develop in the political sphere before the Supreme Court took up the specific question of constitutional protection for abortion rights, and the right itself would have been grounded in doctrines concerning equality more than privacy.
Whether this incremental and equality-based approach would have left us with the same or greater protections for reproductive choice than we have today is hard to know. Others had less patience, and the law developed along different lines.
The Supreme Court in 1973 was differently composed than it is now. Roe v. Wade adopted transformative protection for abortion rights, which had the effect of invalidating many state laws around the country, and has been a source of controversy ever since. While the Court in 1992 upheld the central right of a woman to be protected against “undue burdens” on the right to abortion, states continue to restrict abortion rights, with a goal of making the procedure inaccessible as a practical matter, especially for women without financial resources. A case from Texas that the Court will decide this term again puts the matter up for debate.
One of the themes of Notorious RBG and of the Justice’s work has been about the importance of not being the only woman in the room, “something strange and singular,” as she put it. Whether the presence of three women justices on the Court will matter to the disposition of the case from Texas is something we may never know, but the Notorious RBG Tumblr, I expect, will have something to say about it.
When you try to mix pop culture biography with legal theory, some areas are bound to miss the mark. You might wind up slapping a section on raising children in New York in the middle of an explanation of the judicial appointment process. Or you might include perhaps too much annotated material from briefs and opinions.
Why quibble though, when the book succeeds so mightily at its main purpose: providing a loving and energetic tribute to a justice who has tirelessly fought for equality and who has been a credit to the Supreme Court and to the law. It is both trumpet call and translation, presenting and interpreting RBG’s work for a new generation that is waiting to take up the mantle and finish the job.